On 27 October 2015, Mr Justice Blake set aside an injunction granted in defamation proceedings brought by Vladimir Bukovsky against the Crown Prosecution Service (“CPS”). In doing so, he considered a number of issues relating to freedom of expression, the duties of the press and proportionality.
The proceedings were brought by Mr Bukovsky after the CPS issued a press release stating that he had been charged with the making and possessing of indecent images of children. Mr Bukovsky sued the CPS for defamation and misfeasance, alleging that the press release was made maliciously and that the reference to the “making” of indecent images suggested that he was present at the time the alleged images were created. In its defence, the CPS sought to justify the press release as true and disputed the innuendo meaning put forward by Mr Bukovsky.
Mr Bukovsky applied to have the defence struck out and, in a without notice application heard in private, obtained an injunction prohibiting the CPS from communicating factual allegations contained in its defence regarding the police investigation to “any other party” except its legal advisers and the court.
The CPS became concerned that it would not be able to refer to relevant factual matters in the upcoming case management conference in the criminal proceedings without breaching the injunction and applied to have it set aside on the basis that it had been improperly made and was unnecessary and disproportionate.
The application was successful and the judge held the following:
- Freedom of Expression: the order interfered with the right to freedom of expression under Article 10 of the European Convention on Human Rights and therefore engaged section 12 of the Human Right Act 1998 (“HRA 1998”).
- Section 12 of the HRA 1998 includes a procedural restriction preventing a judicial officer from making a without notice injunction in the absence of exceptional circumstances. There were no such circumstances in this case and the CPS should have been able to attend the hearing and inform the court of authorities relevant to pre-publication restraints.
- Section 12(3) of the HRA 1998 prevents interim injunctions from being made in cases which relate to freedom of expression, unless it is likely that the applicant will succeed at trial. The threshold had not been met in this case. Further, it is well established that where a defendant pleads truth in a defamation case, publication should not be prevented unless the defence has no real prospect of success, which was not the case here.
- Press: there was no need for injunctive relief to prevent the allegations made in the defence from being repeated by the press, who were well aware of their duties not to prejudice the criminal trial and their responsibilities pursuant to the Contempt of Court Act 1981. However, the judge did hold that it was possible that overseas journalists would seek to access and publish the relevant material in the defence and, as a precautionary measure, he sealed the pleadings from the public until the strike-out hearing, which would be heard in open court.
- Terms of the order disproportionate: even if this was a case in which restrictions were appropriate, the terms of the order were disproportionate and appeared to interfere with the CPS’ ability to communicate with relevant police officers and other legal advisers.
Bukovsky v Crown Prosecution Service (unreported, Queen’s Bench Division, 27 October 2015)